FLW0054

SOURCES OF CONSTITUTIONAL LAW

Faculty of Business Management and Professional Studies

(FBMP)
 1.Federal 2. State
Constitution Constitutions 3. Legislation

SOURCES OF THE M’SIAN

CONSTITUTIONAL LAW

4. Subsidiary 5. Judicial 6. Custom &

Legislation Precedent Conventions
1. THE FEDERAL CONSTITUTION
It is the supreme law of the land: Articles 4 (1) of Federal
Constitution
FC lays down the powers of Federal and State Governments in light
of Article 74 & Ninth Schedule
It provides the basic or fundamental rights of an individual. These
rights can only be changed by 2/3 majority.
FC is regarded as the most important source of the written law. It
applies to all states in the federation.
1. THE FEDERAL CONSTITUTION

Any general law that is inconsistent with the Constitution is, to

the extent of the inconsistency, void.
Constitutional supremacy is maintained by giving to the superior
courts the power & duty to invalidate any legislative or executive
act that violates any of the 183 Articles & 13 Schedules of the
Constitution.
2. THE STATES CONSTITUTIONS
Each states in Malaysia has its own individual constitution which
provide for a single chamber Legislative Assembly in each state.
This constitution regulates the government of that particular states.
e.g. Selangor Constitution.
Article 71 (4) of FC provides that it is mandatory for each state
constitution to contain provisions in Part I of the 8th Schedule –
regarding Rulers to act on advice, for the existence of an Executive
Council (including Menteri Besar), a single chamber & an elected
state legislature.
3. LEGISLATION

 It refers to laws enacted by a body constituted for this purpose.

 In Malaysia, laws are legislated by the:
 a. Parliament – at Federal level
 b. State Legislative Assemblies – at State level
3. LEGISLATION

 Procedure:
For enactment of an Act of Parliament is a simple majority of the members present & voting in
both houses of Parliament & the assent of the YDPA : Article 62 (3).
3. LEGISLATION
• Exceptions : (simple majority not applicable)
• a. Amendment of the Federal Constitution subject to 2/3 majority
& different procedures: Articles 159 & 161E.
• b. A law altering the boundaries of the state according to Article 2
(b). Required consent of State & of the Conference of Rulers.
• c. YDPA can be bypassed in legislative process under Article 66
(4A).
• d. Enactment of legislation by the Dewan Rakyat & YDPA without
the consent of the Dewan Negara: Article 68.
3. LEGISLATION

• Exceptions : (simple majority not applicable)

• e. Power of Parliament to legislate for States in certain cases including uniformity of laws of 2/more
States: Article 76(1). Subject to adoption of the law relating to the relevant matter by the states.
• f. Enactment/amendment law directly affecting the privileges & powers of the Rulers must get their
consent: Article 38(4)
• g. Malay reserve land cannot be de-reserved except by State & approved by a special majority
resolution of each House of the Parliament: Article 89 (1).
• h. Draft orders relating to delimitation of electoral constituencies require the votes of not less than one-
half of the total number of members of the Dewan Rakyat: Schedule 13, Sections 10-11.
3. LEGISLATION
ARTS 74, 95B & SCHS. 9-10
FEDERAL LIST STATE LIST CONCURRENT LIST
external affairs state government planning
defence Islamic law soil erosion
internal security Malay custom scholarship
civil law Islam public health
administration of justice local government social welfare
citizenship land national parks & wildlife
machinery of government riverine fisheries Drainage & irrigation
finance & taxation forestry
trade & industry roads & bridges
shipping, Fisheries public nuisances SABAH/SARAWAK
energy, Transport (CONCURRENT)
agriculture, housing
education, Health personal law
Malay reservations
labour & professions some fisheries
water
social security some shipping
SABAH /SARAWAK (STATE)
aborigines some energy
native law, posts, harbours,
water supply, rivers & canals libraries, immigration elections
4. SUBSIDIARY LEGISLATION
Also known as subordinate legislation or delegated legislation.
Made by person or bodies under powers conferred on them by
Acts of Parliament or State Assemblies. e.g.: Rule, regulations, by
laws, order, proclamation & notification.
Subsidiary legislation made in contravention of either parent act or
constitution is void.
Persons or bodies will have delegated legislative power conferred
by the legislative. e.g.: YDPA, Ministers, Local Authorities.
4. SUBSIDIARY LEGISLATION

 Example:
• Person/body: Minister of Communications
• Parent Act : Communications & Multimedia Act 1998
• Subsidiary Legislation : Communications & Multimedia (Licensing) Regulations 1999
5. JUDICIAL PRECEDENT

 Doctrine of Judicial Precedent or Binding Precedent

 The doctrine is actually a system which provides for consistency and certainty in decisions.
 A judge’s decision in an earlier and similar case constitutes a precedent and it must be followed.
5. JUDICIAL PRECEDENT
• 1. Definition
• a. Precedent
A judgement or decision of a court of law cited as an authority for
the legal principle embodied in its decision
• b. Doctrine of Judicial Precedent
= Doctrine of Stare Decisis i.e. ‘let the decision stand’. In making a
decision on a case, the judge must follow what has been previously
decided by the superior court in similar situations.
5. JUDICIAL PRECEDENT
• 1. Definition
• b. Doctrine of Judicial Precedent/Doctrine of Stare Decisis i.e. ‘let
the decision stand’.
• This doctrine works in 2 ways:
• i. Vertically – a superior court binds all court subordinate to it &
the court has power to overrule principles of law laid down by
courts of inferior jurisdiction
• ii. Horizontally – a court (usually appellate court) is bound by its
own previous decision, the decisions of its predecessor & the
decision of courts of coordinate predecessor.
5. JUDICIAL PRECEDENT
• 2. Non-application
Circumstances
• Judges may ignore or overrule precedent laid down by a lower
court, where the case is on appeal.
• They may refuse to apply to earlier precedent if it is arrived at per
incuriam (made in ignorance of a statute or binding precedent)
• They may distinguish the case when they find there are material
differences in facts between a case before them & the case laying
down a precedent.
6. CONVENTIONS OF THE CONSTITUTION

 Sources of many binding usages, understanding or practices of Parliament.

 Hood Philips defines Conventions as rules of political practice which are regarded as binding by those to
whom they apply but which are not laws as they are not enforced by the courts.
6. CONVENTIONS OF THE CONSTITUTION

 Dicey explains that Conventions are a body not of laws but of constitutional or political ethics, not
enforced by the courts.
 Prof. Shad defines Conventions as:
-forms of political behaviour regarded as obligatory
-constitutional morality of the day
-non-legal rules of the Constitution
6. CONVENTIONS OF THE CONSTITUTION

 No constitution can provide everything & is supplemented over time by informal usages, understanding
& practices.
 The greater the degree of constitutional rigidity, the greater the need for the benefit of informal
adaptation that conventions bring.
6. CONVENTIONS OF THE CONSTITUTION
• Role
Sir Ivor Jennings in the Law and the Constitution, 1971 regarded
Conventions as a source of constitutional law.
In the UK, conventions give to the British Constitution some of its
most important constitutional principles including the Crown acts
on the advice of the Prime Minister, that the PM is from the House
of Commons where he is the leader of the majority party, & that
the cabinet collectively responsible to Parliament.
6. CONVENTIONS OF THE CONSTITUTION
• Role
Sir Ivor Jennings further explained that conventions ‘are the flesh
which clothe the dry bone of the law’.
Example: in the UK when statutes confer discretionary power on
the Monarch, the implicit understanding is that the Monarch shall,
in accordance with her conventional duty, act on the advice of
Ministers.
Many laws pre-suppose the existence of conventions
6. CONVENTIONS OF THE CONSTITUTION

• Role
 Conventions enable informal changes to take place thereby allowing constitutional growth.
 A convention can give rise to laws in the sense that if the convention is violated with
impunity, legislation to convert the convention into a statutory rule is often enacted.
 Example: In 1993, royal immunities in Malaysia where some members of royalty ignored their
conventional duty to act with dignity & restraint that lead to the amendment of Article 181 to
provide a Special Court to try the Sultans for civil & criminal wrongs.
6. CONVENTIONS OF THE CONSTITUTION

• Role
 Conventions define the ambit of constitutional discretion & the manner in which it is to be exercised.
 In the UK, the British Monarch has legal power to say ‘no’ to a Bill presented to her for her assent. But
the Monarch’s discretion is governed by the convention that she should always give her assent to a Bill
which has duly passed both House.
 Example: In 1708, Queen Anne was not prepared to agree to the creation of a Scottish Mania.
 Conventions help to ensure the existence of constitutionalism & rule of law & contributed to ‘limited
government’.
6. CONVENTIONS OF THE CONSTITUTION
• Conventions in Malaysia
Most constitutional conventions of the Westminster Parliament
apply in Malaysia but a number of political practices have evolved
which reflect local realities.
Article 40 (1) : “YDPA shall act in accordance with the advise of the
Cabinet/ a Minister acting under the general authority of the
Cabinet” has come to mean that the PM, to the exclusion of his
colleagues, has an exclusive rights of audience with the King
despite Article 40 (2)(b).
6. CONVENTIONS OF THE CONSTITUTION
• Conventions in Malaysia
• Examples:
• post of Deputy PM
• the existence of parliamentary & cabinet committees
• the conventional allocation of time to the opposition during
question hour in Parliament
• separate categories of ‘Malay’ & the ‘natives of Sabah & Sarawak’
have been merged under the new concept of ‘Bumiputra’ &
‘Bahasa Melayu described as ‘Bahasa Malaysia’.
6. CONVENTIONS OF THE CONSTITUTION
• Establishment
No formal machinery.
Sir Ivor Jennings lays down 3 criteria for deciding the existence of
conventions:
• i. Are there precedents to the effect? A single precedent is
generally not enough.
• ii. Do the actors in the precedent believe that they were bound by
a rule to follow the precedent? A general acceptance of the
obligatory nature of practice.
• iii. Is there a reason for the rule?
6. CONVENTIONS OF THE CONSTITUTION

• Modification & Repeal

 Conventions may lose binding force because of a major change in constitutional circumstances.
 Example: the National Government in the UK in 1932 waived the doctrine of collective ministerial
responsibility.
 In all cases the question as to whether a convention retains its binding force, is demonstrable by the test
‘break it & see’.
 Conventions can be modified or destroyed by an Act of Parliament. If a convention has fallen into disuse
over a long period of time, or has been violated with impunity, the presumption is that it does not exist.
6. CONVENTIONS OF THE CONSTITUTION

• Obedience
 Why? According to Jennings conventions are obeyed because of the political difficulties which
may follow if they are not.
 Dicey argues that if a convention is disregarded, there is danger that the breach would bring
the violator into conflict with the law of the land.
6. CONVENTIONS OF THE CONSTITUTION
• Obedience
The consequences of a breach of convention are more commonly
political than legal.
Breach of convention might lead to changes in the law or in the
whole constitutional structure.
Reasons to adherence to conventions: force of habit, respect &
love for tradition, fear of disrepute, sense of obligation, fear of
disagreeable political consequences, political self-interest &
proven utility of conventions.
6. CONVENTIONS OF THE CONSTITUTION
Interrelationship with law
The interrelationship between law & conventions is that both legal &
conventional rules govern conduct & control & limit executive
discretion.
Conventions are the non-legal rules which regulate the way in which
legal rules work.
They supplement the law, make the legal constitution work, keep in
touch with the growth of ideas (Jennings).
Courts may adopt a convention in a judicial precedent: Tun Datu Haji
Mutapha v Tun Datuk Haji Mohamad Adnan Robert [1986] 2 MLJ 420.
6. CONVENTIONS OF THE CONSTITUTION
• Distinction between law & convention
Law are enforceable judicially. Conventions are not. Conventions
are rules unaccompanied by judicial sanction or relief. No court of
law would take notice of their violation.
The only sanctions against violators of conventions are political
sanctions: Govt. of Kelantan v Govt. of the Federation of Malaya
(1963) MLJ 355.